Monday, January 12, 2009

(Once again, I offer a tip o' the Rumpolean bowler to Greg Griffith, at StandFirm, for the news that sparked this post.) Remember when I put up a post called "A Murder of Crows"? I was only half-facetiously referring to the mess that would ensue if the Episcopal Church (USA) and its leadership determined to carry on the charade of pretending that "dioceses can never leave the Church; only people can." I said things would become more and more irregular, and more and more mixed up, until what resulted could be described only as "a murder of crows, a scold of jays, and a sneak of weasels."

I think we are there already. The Presiding Bishop, the Most Rev. Katharine Jefferts Schori, is acting more and more like an authoritarian metropolitan primate, and is claiming powers and jurisdiction over individual dioceses that have never been granted to her office by ECUSA's Constitution or Canons. Things are about to become so jumbled up legally and canonically that my head starts to hurt in just contemplating how to explain Bishop Schori's gallimaufry (that's a fancy word for stew) to non-legal folk who just come here to see if they can get a handle on what is happening. I shall try my best, but believe me, it is not that simple.

To start with, it appears that Presiding Bishop Jefferts Schori has been taken up on her metropolitan strategy. This has needed doing for some time, I regret to have to say. The Rt. Rev. Jack Leo Iker, the Bishop of the (only currently existing) Diocese of Ft. Worth, has written Bishop Jefferts Schori a marvellously concise letter that exposes in three short paragraphs the flaws in her plan to colonize Ft. Worth. (Her office has announced that she will appear there on February 7 to convene a "Special Convention", and to lead a celebration of Holy Communion at All Saints, Ft. Worth. Bishop Iker's letter pretty much ignores the special convention, which in any event is illegal, in purporting to be a gathering of the Diocese, and points out that she has not been invited to the Diocese to preach or to celebrate communion. In doing so, he is turning the tables on her with a letter that she wrote earlier to Archbishop Venables, when the shoe was on the other foot.)

Now, before I wade in too far too fast, please understand that when I say there is only one existing Diocese of Ft. Worth, I am referring to that entity in its legal sense. The Episcopal Diocese of Ft. Worth is a specific corporation organized under Texas law. Its Bishop is the Rt. Rev. Jack Leo Iker, who has placed himself under the jurisdiction of the Province of the Southern Cone. Thus the Presiding Bishop has no jurisdiction over him. Why, you ask, is he then citing ECUSA Canons in his letter to the Presiding Bishop, if he is no longer subject to them? Because whatever his situation may be, the Presiding Bishop is still subject to them---or should be, at any rate. That is why I say he has "taken her up" on her claim to be acting with authority. Her only source of authority is in those documents called the ECUSA Constitution and Canons, and it is right for him to demand that she justify her proposed actions with regard to them.

Thus in the first paragraph of his letter, Bishop Iker cites to Bishop Jefferts Schori one of her own canons---Canon III.12.3 (e) [note: the letter has a typo, and cites subsection (c)], which reads:

No Bishop shall perform episcopal acts or officiate by preaching, ministering the Sacraments, or holding any public service in a Diocese other than that in which the Bishop is canonically resident, without permission or a license to perform occasional public services from the Ecclesiastical Authority of the Diocese in which the Bishop desires to officiate or perform episcopal acts.

Bishop Iker then points out that no one in the Episcopal Diocese of Ft. Worth with authority has invited Bishop Jefferts Schori to do any of these things. He states flat-out, in the second paragraph (emphasis added): "You have no canonical authority to do what you propose to do."

In the final paragraph, Bishop Iker makes clear that the individuals purporting to issue the invitation to the Presiding Bishop are still members of parishes that have not left the Diocese (as a diocesan canon allows them to do), and thus are still bound by the diocesan constitution and canons. They are acting both in defiance of those documents, as well as in defiance of his authority as the Diocese's only elected bishop.

What Bishop Iker states is perfectly true. Canon I.4 is the Canon that spells out the duties and powers of the Presiding Bishop. Here is that Canon:

(a) The Presiding Bishop shall be the Chief Pastor and Primate of the Church, and shall:

(1) Be charged with responsibility for leadership in initiating and developing the policy and strategy in the Church and speaking for the Church as to the policies, strategies and programs authorized by the General Convention;

(2) Speak God's words to the Church and to the world, as the representative of this Church and its episcopate in its corporate capacity;

(3) In the event of an Episcopal vacancy within a Diocese, consult with the Ecclesiastical Authority to ensure that adequate interim Episcopal Services are provided;

(4) Take order for the consecration of Bishops, when duly elected; and, from time to time, assemble the Bishops of this Church to meet, either as the House of Bishops or as a Council of Bishops, and set the time and place of such meetings;

(5) Preside over meetings of the House of Bishops; and, when the two Houses of the General Convention meet in Joint Session, have the right of presiding over such Session, of calling for such Joint Session, of recommending legislation to either House and, upon due notification, of appearing before and addressing the House of Deputies; and whenever addressing the General Convention upon the state of the Church, it shall be incumbent upon both Houses thereof to consider and act upon any recommendations contained in such address;

(6) Visit every Diocese of this Church for the purpose of: (i) Holding pastoral consultations with the Bishop or Bishops thereof and, with their advice, with the Lay and Clerical leaders of the jurisdiction; (ii) Preaching the Word; and (iii) Celebrating the Holy Eucharist.

(b) The Presiding Bishop shall report annually to the Church, and may, from time to time, issue Pastoral Letters.

(c) The Presiding Bishop shall perform such other functions as shall be prescribed in these Canons . . .

Let us put aside for a moment Bishop Iker's little jibe at the Presiding Bishop for coming to celebrate Holy Communion in his Diocese without his permission, in violation of Canon III.12.3 (e). For there are things at stake here which are far more important than just a mass. Needless to say, Bishop Jefferts Schori did not consult either with the Ecclesiastical Authority in Ft. Worth before announcing that she would appear there February 7 to convoke a Special Convention. No, indeed---that is not her style. First she claimed to have deposed Bishop Iker, based on the strength only of a press release he issued in response to her declaration that he was inhibited, following the vote by the Diocese to disaffiliate with the Episcopal Church (USA). Then she announced that because of that vote, she did not "recognize" the Standing Committee as the Ecclesiastical Authority of the Diocese.

Of course, both of those actions on her part were utterly without any legal or canonical consequences whatsoever. Not only did Bishop Jefferts Schori lack jurisdiction over Bishop Iker to "depose" him, but his press release did not renounce his orders by simply pointing out that lack of jurisdiction. Nor did she have jurisdiction over the Standing Committee, or any authority to "derecognize it." The "diocese" which she presumed to declare vacant is no diocese at all---how could it be, when ECUSA apologists constantly reiterate that only General Convention creates a diocese, and General Convention will not meet for another seven months?

The entity formerly recognized as a member diocese of ECUSA---which still has the perfect legal right to call itself "the Episcopal Diocese of Ft. Worth", because it is still the same corporation, and did not change its name---could no longer be a member of ECUSA once the change was adopted. As of that instant, ECUSA itself, and its Presiding Bishop, lost all authority and jurisdiction over the diocese and its bishop. (That is, speaking legally again. Remember that to speak canonically has little meaning when it comes to the actions of the current Presiding Bishop. There is no point in trying to guess the canonical effect of what she does when that effect depends totally on what she claims it is from moment to moment. And because in the end she has to make any canonical decision of hers stand up in court, it is only the legal sense of her actions that ultimately matters.)

Having unilaterally acted (so she believes) to deprive the Diocese of Ft. Worth of any Ecclesiastical Authority, she now pretends that she and she alone can fill the resulting vacuum. I ask you to read Canon I.4 again, and read Canon III.13.1 while you are at it (which gives the Presiding Bishop authority to "consult" with the diocesan Convention on the appointment of a provisional bishop). Can you find anything in them that authorizes or allows any such course of action on her part? (Under the Constitution of the Diocese of Ft. Worth, by the way, conventions may be called only by the Bishop or the Standing Committee.)

Bishop Jefferts Schori, in short, is acting as judge, jury, executioner and Supreme Executive all in one. She first judges and executes the bishop based on a press release; then she judges and summarily disposes of the Standing Committee; and having cleared the way, triumphantly enters on the scene, calls the faithful together and defines unilaterally who may attend and take part (caution: if San Joaquin is any guide, an "oath of conformity" will be required of each delegate), so that the outcome is foreordained. Does anyone fail to see the contrast between how the vote "to reorganize" will be taken, as compared to the vote to depart?

Now, I realize all too well that there will be those who find the Presiding Bishop's actions in Ft. Worth to be entirely necessary and proper, even if not specifically authorized in the Canons. But those who do so are, I submit, the first to jump up and down and point to the fact that there was until recently no provision in the Constitution or Canons of the Province of the Southern Cone that would allow the Diocese of Ft. Worth to affiliate with it, either---even on a temporary and emergency basis. So let us apply some logic here, to see which side has the better argument.

The affiliation of Ft. Worth with the Southern Cone is temporary, intended to provide primatial oversight until there is in existence a North American province that will provide the same function. (Recall that the other North American province, that which I now refer to as ECUSA, refused to implement the plan of primatial oversight recommended by the Archbishop of Canterbury and the assembled primates at Dar-es-Salaam. Such outright refusal left the folk in Ft. Worth without any recourse within ECUSA, so they sought oversight elsewhere.) There is thus scarcely any need to go through the cumbersome formalities of amending the provincial Constitution (which includes having the change considered by the Anglican Consultative Council) just to have to amend it again when the emergency---caused by ECUSA's refusal to do what the primates asked it to do---is over.

The claimed "vacancies" in the Diocese of Ft. Worth, however, are of a different legal order of magnitude. There will be thorough and lasting consequences from the action which the Presiding Bishop plans to take there on February 7. Consider these points:

(1) There will be a new "Standing Committee" elected, which will claim to exercise "ecclesiastical authority" over the "Diocese";

(2) There will eventually be elected a new "bishop" of the "Diocese", whom ECUSA's House of Bishops will purport to recognize, and will give a seat and a vote in its future deliberations; and

(3) Actions will be taken in the name of the "Diocese" by either the "Standing Committee" or the "bishop", or both, that will affect the status and careers of clergy, both within ECUSA and in the larger Anglican Communion.

There is only one parallel for the world which ECUSA is about to enter as a result of unilateral and unauthorized actions of its Presiding Bishop, along with the collaboration of willing constituents in San Joaquin, Ft. Worth and Pittsburgh (and perhaps soon, Quincy). That parallel is the nearly 40-year period of the Great Western Schism, from 1378-1417, when there was one who claimed to be the pope in Rome, and another claiming that title in Avignon. (Toward the end of that period, beginning in 1409, there were three cardinals each claiming to be the lawful pope.)

Needless to say, the Roman Catholic Church was hardly advanced in prestige and influence by that disgraceful quarrel. The same is about to be true of the Episcopal Church (USA). There are currently two Bishops of San Joaquin, and soon there will be two Bishops of Ft. Worth, two Bishops of Pittsburgh, and even perhaps two Bishops of Quincy. The Episcopal apologists say it is all the dissenters' fault, because dioceses "can never leave---only people can." Thus the renegades, in their topsy-turvy view of the situation, are the illegitimate ones.

Here is a link to the full Constitution and Canons of the Episcopal Church (USA). Be my guest: you can copy and paste from them into a comment below any language at all from them which you honestly believe restricts a Diocese of the Church from so amending its own Constitution as to remove the clause acceding to their authority. ("Accede" is defined by my dictionary as: "to join up, to become a party to." Thus one who joins up can just as easily leave; one who becomes a party to something can just as easily withdraw.)

I will even do you a favor by anticipating one suggestion, and by dealing with it here and now. Should you be inclined to cite the following language from Article V, section 1 of ECUSA's Constitution, please pay close attention (the subject and the consequences, after all, are most serious):

A new Diocese may be formed, with the consent of the General Convention and under such conditions as the General Convention shall prescribe by General Canon or Canons . . . After consent of the General Convention, when a certified copy of the duly adopted Constitution of the new Diocese, including an unqualified accession to the Constitution and Canons of this Church, shall have been filed with the Secretary of the General Convention and approved by the Executive Council of this Church, such new Diocese shall thereupon be in union with the General Convention.

I have added the bold to make one thing perfectly clear about this language: after a new diocese has been formed, it is considered "to be in union" with General Convention only when its Constitution is on file with the Secretary containing an "unqualified accession" to ECUSA's Constitution and Canons. Please note that there is no restriction of any kind on what the new Diocese may do with its Constitution after it has been so filed with the Secretary. Dioceses amend their Constitutions with regularity, yet ECUSA's Constitution contains no requirement that such amendments receive the approval of General Convention, or even of the Executive Council, before they can take effect.

In other words, once General Convention is satisfied that a Diocese has acceded upon being admitted, it never revisits the topic. Some Dioceses, in fact, were admitted (and have continued to remain in ECUSA) without even having any kind of "accession" language in their Constitutions (for details, see this post). So General Convention does not insist that an accession be for all time, and irrevocable---no such language is to be found in ECUSA's Constitution.

To those who would imply a rule that an "unqualified accession" is irrevocable, on the analogy of the United States itself, I would first ask: "Are you prepared to fight a Civil War over it?" Such a rule became established only as a result of that War---because before the Civil War, the Southern States certainly felt that there was nothing in the Constitution that prohibited them from withdrawing.

The real reason that there is no analogy to the United States, however, is that unlike ECUSA, this country is not organized as a voluntary association of independent States. It tried that, with the Articles of Confederation, and found the result unsatisfactory. ECUSA, however, is nothing more than a voluntary coming together of associated dioceses. The "freedom of association" that is enshrined in our First Amendment means just that: dioceses, which are "persons" in the law just like real people, are free to associate with whom they wish. ECUSA's Constitution may be read as saying that the association lasts only for as long as the Diocese maintains an accession clause in its Constitution. Nonetheless, when a Diocese votes to remove the accession clause, all that means is that it no longer wishes to be associated with ECUSA, and no longer can be. (Quaere, as my law professors used to say, about the Dioceses of Maryland and Washington, which do not have such clauses today, and which never have had them in the past.)

Bishop Jefferts Schori, and those who do not question her actions, have succumbed to nothing more than a slogan, which may express some sort of religious sentiment: "people may leave, but dioceses may not." That religious sentiment, however poorly it may be expressed in church canons, does not correspond to the secular law. A Diocese, just like ECUSA itself, has a dual character: it is a creature both of canon law, and a creature of the secular law. As stated by two recognized authorities in the field:

While it seems completely obvious to observe that organized religion requires the existence of formally constituted organizations, the implications for the function and practice of religion are profound. Religion, whatever its transcendent qualities, is an inherently social phenomenon. If it is to have a continuing presence in society, that presence must be organized in some way . . . .

However, what religious organization means to adherents and what it means to outsiders, including the state, can be very different things. . . . [There has to be made] a careful distinction between a religious organization's legal structure and its religious structure. The legal structure is the particular corporate form a religious organization takes in the eyes of the law; it is, in other words, the embodiment of the religion as an organization in matters legal and governmental. As a result, some aspects of any given legal structure are not available to the discretion of organizational adherents---religious or otherwise---but are dictated by law. Examples of legal structure include a non-for-profit corporation, a trust, a corporation sole, and an unincorporated association.

(R.H. Williams and J.P.N. Massad, "Religious Diversity, Civil Law, and Institutional Isomorphism", in J. A. Serritella, et al., eds., Religious Organizations in the United States, at 111 [Durham: Carolina Academic Press, 2006].) Thus while a diocese is an integral structural part of a national church or province, it is so only as a matter of that church's or province's religious structure. Its role as a legal structure is limited and defined by its own governing documents.

A moment's thought will show that it is only in such a way that the legal system can function. The State of Texas, for example, knows everything there is to be known legally about the corporation which constitutes the "Diocese of Ft. Worth" in that State, because its articles are on file with the State government. At the same time, the State of Texas knows nothing at all about the entity which calls itself the "Episcopal Church", for the simple reason that ECUSA's Constitution is not on file with the Texas Secretary of State---for the perfectly good reason, mind you, that ECUSA does not purport to be organized under the laws of the State of Texas.

So if there were some restriction, written or unwritten, in ECUSA's Constitution that affected what the Diocese of Ft. Worth could do under Texas law, how would the State of Texas ever find out about it? The only way that could happen is if there were a legal contract between the Diocese and ECUSA, and ECUSA filed suit in a Texas court when it claimed that the Diocese had breached the contract. In such an instance, ECUSA would plead and prove its contract, and ask the court to enter judgment in its favor.

The Diocese of Ft. Worth has proceeded to follow its own constitutional provisions in voting to amend its Constitution. The amendment, among other things, removed the clause by which the Diocese acceded to ECUSA's Constitution and Canons. That one change made it impossible for that corporation to continue to be a Diocese of ECUSA. Question: what corporation took its place? What Texas corporation exists today, as I write this, which has a constitution which contains a clause acceding to the Constitution and Canons of the Episcopal Church (USA)?

Answer: There is none. None, nada, zilch. All there is are a few disgruntled parishes and their members who disagree with what the majority did. So, another question: have those disgruntled people taken the trouble to form a new corporation of their own? Not to my knowledge, they haven't. What they have done is to claim a right to use the corporate name, and to set up a Website. But a Website does not a Diocese make.

What they also intend to do, apparently, is to make a legal argument as to why the actions of the corporation in amending its governing document should not be given legal effect. (Notice that this is not the same as being given canonical effect. The latter sense, remember, is defined by the Presiding Bishop, since she makes up all her own canons, and by others in ECUSA when she allows them to do so.) Being given legal effect means, in this context, "being enforced by a Texas State court."

So for Bishop Jefferts Schori and her band of followers/enablers to claim that such an amendment was without any authority under Texas law, she will have to plead and prove in Texas court a legally binding contract by which the Diocese agreed to restrict its general power of amendment, notwithstanding the fact that its Constitution---which General Convention and the Executive Council voted to approve, mind you, when the Diocese was admitted to the Church---contains no such restriction.

That's Strike One against the Presiding Bishop's case in court. Strike Two is that there is no such language in ECUSA's Constitution or Canons, either.

The Presiding Bishop is left with the argument that despite the lack of any written language in their respective governing documents, the two entities had an unwritten understanding---a sort of side agreement, if you will, which everyone involved knew about, but which no one felt was necessary, or important enough, to put into writing. That's a pretty tough burden to meet---it would require in this instance a showing of a custom and practice between the Church and its Dioceses in the past.

And there the argument runs smack into the custom and practice which the Southern Dioceses and the Church followed during the Civil War. At the outset of that War (as the post just linked explains in detail), there was considerable discussion in the Southern dioceses about whether the secession of the several Confederate States from the Union had effected ipso facto the withdrawal of the Dioceses from the national Church. This issue was eventually resolved in favor of the dioceses being considered as independently able to make such a decision, each for itself. Those whose conventions were able to meet in wartime thus took steps to amend their governing documents as needed to affiliate with the "Protestant Episcopal Church in the Confederate States of America," whose Constitution was ratified by most of the Southern Dioceses in November 1862. (Only Tennessee and Louisiana were unable to convene assemblies during the entire War, and so never formally ratified it.) And when the War was over, the Southern Dioceses met in General Convention for the last time in November 1865, at which they adopted the following resolutions (bold added for emphasis):

"Resolved, I. That in the judgment of this Council it is perfectly consistent with the good faith which she owes to the Bishops and Dioceses with which she has been in union since 1862, for any Diocese to decide for herself whether she shall any longer be in union with this Council."

V. "That whenever any Diocese shall determine to withdraw from this Ecclesiastical Confederation, such withdrawal shall be considered as duly accomplished when an official notice, signed by the Bishop and Secretary of such Diocese, shall have been given to the Bishops of the Dioceses remaining in connection with this Council."

So that is Strike Three against Bishop Jefferts Schori, and the claim that a Diocese cannot legally disaffiliate from the Church strikes out in court.

Now this ballgame is being played, at enormous expense, not just in Fort Worth, but simultaneously in San Joaquin and Pittsburgh. (The case in Pittsburgh is slightly different, because ECUSA there has not---yet---inserted itself as a party in the lawsuit. Instead, it is playing the game through a proxy---which is nothing other than the group which is claiming to be the diocese that didn't leave. More on that in a minute.) At some point the courts will have to decide just which entity in each case is the legal diocese. In doing so, they will look at two main things.

First, they will look for any custom or practice that establishes an unwritten rule that dioceses of ECUSA are not free to amend their governing documents as they wish. As already noted, they will find a ready counterexample in what happened with the Southern dioceses during the Civil War.

The second thing they will look at is whether ECUSA has followed its own Constitution and Canons to go through the steps required to create a lawful Diocese of its own in place of the one that has left. That inquiry will be over as soon as the court learns that General Convention does not meet until July 2009. (And because ECUSA will never retreat and admit its mistake, GC 2009 will come and go without any action in that direction as well. Then the courts will have to wait until GC 2012 to see whether ECUSA will act to create a diocese that can be legally recognized as such.)

"No man can serve two masters," said Our Lord and Savior (Mt 6:24). The same is true of corporations: no corporate Diocese can serve two different provinces of the Anglican Communion. It may well be that for its purposes, the Anglican Communion will not want to recognize two different dioceses (or provinces) covering the same geographical area---we shall see what happens in regard to the new North American province. But that decision, when it comes, will have only canonical, and not legal, significance. While there remains only one corporation incorporated as "the Episcopal Diocese of Fort Worth" in the eyes of Texas, that corporation will have the exclusive right to both the name and the property of the diocese, unless and until a Texas court rules that they belong to another. And I have already gone over in detail what ECUSA will have to show for that to happen.

The mess in Pittsburgh is turning out no better; the absence of ECUSA from the lawsuit there changes nothing. But this post has grown long (and perhaps confusing) enough. Pittsburgh deserves its own post, on which I shall start to work as soon as I take a big dose of aspirin.

27 comments:

I cannot let such a lie stand unchallenged: The Anglican Curmudgeon refers to "The Rt. Rev. Jack Leo Iker, the Bishop of the (only currently existing) Diocese of Ft. Worth...."What utter nonsense. Iker has left the Episcopal Church and has the gall to consider as the rightful Bishop of the Episcopal Diocese of Fort Worth and to complain that the PB is violating the Episcopal Church's Canons by visiting "his" diocese without his permission. I can only conclude that Iker is living in a fantasy land where he can leave the Episcopal Church and still claim to be the Bishop of an Episcopal diocese. I am sorry that the Anglican Curmudgeon seems to have put aside his keen legal way of thinking and joined Iker in fantasy land.

I have often thought that the people in authority in TEC have delusions of being the next Lincoln. You know, "preserve the union" and all that. Does the structure of TEC force one to view it as more akin to a confederacy? Or maybe something like this.

The Anglican Curmudgeon asks what diocese exists in Forth Worth other than the one that is no longer part of the Episcopal Church? Clearly no organized diocese of the Episcopal Church does exist, but that should not prevent the Presiding Bishop from workingt to organize a continuing - of, if you insist - new Episcopal Diocese of Forth Worth. Perhaps it could be seen as a Missionary Diocese, acknowledged as such by the Executive Council. Whatever one might call the reorganized diocese, it is nonsense, and perhaps mean-spirited nonsense, to assert that the Episcopal Church has no right or responsibility to provide for those parishes that want to remain within the Episcopal Church. They have been abandoned by Iker and I appluad the PB for taking this action on their behalf.

Thank you, Fr. Weir, for your comments here. You have, I think, responded yourself to your first comment, by what you say in the second. The legal situation, as I stressed, is that there is currently only one Diocese of Ft. Worth in Texas. While in ECUSA's view there might be a canonical remnant, that remnant will not exist legally until those people organize and file corporate papers under the laws of Texas. Then a lot more will have to happen before that corporation can become a true Episcopal diocese, in both the legal and canonical senses of that word. (For details, please read this post.)

No one is "preventing" the PB from doing anything---all that is happened is that Bishop Iker could not resist tweaking her, as she had complained to Archbishop Venables about coming to Ft. Worth and participating in services there. (Now the shoe is on the other foot, because now Ft. Worth is subject to the jurisdiction of the Southern Cone, and it is Bishop Schori who has decided to go into another province and celebrate communion there with certain parishes without bothering to ask the Bishop of the diocese for permission.)

So the PB can help organize the parishes who want to remain Episcopal; but she should at least follow ECUSA's own Canons in doing so. The fact is, Fr. Weir, just watch her: she will do no such thing. She will hold her special convention, elect a Standing Committee, and voilà! a new Diocese, without ever having to get the consent of General Convention, or to file papers for a new corporation. That is my problem with our Presiding Bishop, and that is why I keep posting in an attempt to point out how she is continually making things worse by refusing to follow her own Canons. She is being execrably advised, and she is making things far worse than they ever need to be.

As you open with examples of venery, let me add another inspired by St. John Chrysostom who said, "the floor of hell is paved with the skulls of bishops." My contribution to the body of venery is - 'a floor of bishops' or perhaps 'a hell of bishops.'

Sorry, Daniel Weir. As you should well know, bishops simply can't declare themselves to be no longer bishops. Bishops may resign or be deposed - but both of which have strict descriptions of the procedures in the C&C. So until the time that those procedures are carried out, bishops are bishops.

If we look at the C&C:

"If any Bishop of this Church not subject to the provisions of Canon IV.8 shall declare, in writing , to the Presiding Bishop a renunciation of the ordained Ministry of this Church, and a desire to be removed therefrom, it shall be the duty of the Presiding Bishop to record the declaration and request so made..."

Note there is nothing about interpreting press releases as letters of renunciation. There has been no written communication between Bp Iker and Ms Schori for months. So Bp Iker has not been properly released from his ecclesiastical duties in the ECUSA. Until that time, Bp Iker is a bishop in both the Southern Cone and the ECUSA. If you don't like it, write to Ms Schori and tell her to do it right.

robmdphd, you may be right that the Presiding Bishop was acting in violation of the canons in considering Bp Iker's public renunciation of the ordained ministry of this Church as the equivalent of his communicating that to her in writing. You are wrong, however, in your assertion that only by resigning or being deposed may a bishop be removed from office. Renunciation is also covered in the canons and that is what Bp Iker did. I think his refusal to communicate that in writing to the Presiding Bishop cannot, in all fairness, be seen as preventing her from acting upon his renunciation in accordance with Canon III.13.4. I have heard that Bp Iker has stated that he has never recognized Bp Katharine's authority. If that is true, it would explain why he did not communicate his renunciation to her directly. It would seem, from your refering to her as Ms Schori, that you do not recognize that she is a bishop. Even Bp Iker's tweaking letter was addressed to The Most Reverend..... I have found it wise in discussions of this sort to refer to people in the manner in which they prefer.

Contrary to assertions that there has been no communication between Bp Iker and the Presiding Bishop for months, the PB informed Bp Iker in November that the Title IV Review Committee had concluded that he had abandoned the communion of the Episcopal Church and that, with the concurrence of the three senior bishops on the church, she was inhibiting him from exercising the gifts of the ordained ministry of this church. Bp Iker's response. also in November, was that the Presiding Bishop had and never had any authority over him. From my perspective, given the refusal of Bp Iker to inform the PB in writing of his renunciation, the PB has acted in accordance with the canons. Bp Iker has had ample opportunity to assert that he has not abandoned the communion of this church and has not renounced his orders within the Episcopal Church, but has not done so. He also had the opportunity to request a transfer to another church within the Anglican Communion, but he has not done that either. I think that the PB has taken the only course of action that Bp Iker left her.

Father Weir, regarding your last comment: Bishop Iker has most definitely protested that he did not renounce his ordained ministry; his statement to that effect may be read here.

Also, there is no mechanism under the Constitution and Canons by which a diocesan bishop has to "request" a transfer to another Church. It is inherent in a Bishop's diocesan authority that he may choose to affiliate with whatever Church he likes. That does not prevent other bishops, as we have seen, from bringing charges of "abandonment of communion" against him; but that is a different matter, and is frequently a meaningless and incoherent act. (For more, see this comment.) Under ECUSA's Constitution and Canons, no one has the power to grant "permission" to a diocesan bishop to transfer to another Church.

I have only read through the first half of this article, but in doing so I was immediately reminded of an ironic suggestion related to me by a close friend who is a County Prosecuting Attorney. It occurred to him in the course of dealing with U.S. District Judge Alan McDonald in Yakima, WA. I was thinking how apt it would be in the context of writing legal documents (briefs, etc.) with respect to the actions of TEC (not to exclude some of the jurists who have been, are, and will be, involved with these and related issues).

To cut to the chase, as it were, his suggestion was for a new abbreviation for use in footnotes involving discussions of dicta, and while it would be clearly useful in that context, it might also find wider use, including addressing the reasoning behind many recent action by representatives of TEC. The suggested abbreviation is f.n.a.r., the translation of which is "for no apparent reason."

I am so taken with the idea that I would humbly suggest you consider it for use in some of your more detailed legal arguments on this blog, in order to highlight the irrationality, not only of those whom you write about, but also the ruminations of some of those commenting here [he said, having no one particular in mind ;-) ].

Mr Haley,You are right, of course, that Bp Iker did not write to the PB and renounce his oreders. The Review Panel, however, found evidence that he had abandoned the Communion of the Episcopal Church and it was on that basis that the judgement was made that he had renounced the ordained ministry of the Episcopal Church. Legal and even canonical questions aside, can one reasonably argue that Bp Iker is still exercising the ordained ministry of the Episcopal Church when he has left the Episcopal Church? He may still be a bishop, I leave that judgment to God, but it is ridiculous to think that he is still a bishop of the Episcopal Church.As to the possibility of hius requesting a transfer to another church in the Anglican Communion. You are right that he cannot do that as long as he is a diocesan bishop in the Episcopal Church, but I am convinced that he longer is. As to your assertion - "It is inherent in a Bishop's diocesan authority that he may choose to affiliate with whatever Church he likes." - even if I granted the truth of it, which I don't, the only person that he may affiliate with whatever Church he likes is himself. As I have argued, although you disagree with me, an Episcopal diocese cannot, without the consent of the General Convention, affiliate itself with, i.e., become a member diocese of, any body other than the Episcopal Church.Finally, I think I have written all that I can on this topic and will bow out of the conversation.

Martial Artist, thank you for that suggestion. I shall definitely keep it in mind for my further posts, and I shall cite back to your comment for its explanation.

I commend you for your recent unstinting defense of the facts and the truth over at SF, on the thread covering the same topic as this post. Your marshaling and laying out of the arguments in favor of the actions by Bishop Iker and his diocese were so thorough and convincing that you spared me the necessity of entering the fray. Well done, sir!

Father Weir, thank you once again for engaging us here. The (Title IV) Review Panel to which you refer recommended to the Presiding Bishop that charges of abandonment be brought against Bishop Iker; it did not "find" that he had abandoned the Communion, because there still needed to take place a hearing in the House of Bishops, and a vote on the charges. The PB bypassed those steps when she simply treated, with the advice and consent of her Advisory Council, his press release as a statement of renunciation.

Given the historical background of the Episcopal Church, I am unable to regard the joining of another Church in the Anglican Communion as an "abandonment" of its "doctrine or worship"---to say so is to assert that ECUSA is not Anglican. Nor can I agree to the proposition that for a bishop to do so, once his diocese has voted on its own to leave, is an abandonment of its "discipline", in the sense that one is refusing to be obedient to one's ecclesiastical supervisor, since a diocesan bishop has no ecclesiastical supervisor. For a diocesan bishop, his primary responsibility has to be the diocese of which he is the spiritual leader, and not the national church if it decides to stray.

It is by so distorting the language and purpose of the Canons that I think the PB and those who support her are wrecking both ECUSA and the Anglican Communion. In their paramount desire to be "inclusive", they are ending up excluding nearly three-fourths of the Communion of which they claim to be a part.

Anyway, I thank you once again for participating here. You are welcome to comment any time.

First, allow me to express my gratitude for your evaluation of my humble efforts. I am simply a student not only of your writings ant reasoning but also of those of Mr. Mark McCall, who has explicated the argument with such clarity that even someone as dense as I am capable of being might have difficulty in relating it incorrectly.

But to the point of this comment, if I might be permitted to offer a very slight corrective to your assertion that [emphasis in the original] "a diocesan bishop has no ecclesiastical supervisor." It is my belief, to be perfectly precise, that because the ecclesia, to latinise the spelling from the original Greek, is the Body of Christ, and in the local church (the diocese) it is the local expression of the Body of Christ, then Christ must needs be the Bishop's ecclesiastical supervisor. If this understanding is flawed, I would be grateful for any corrective from your perspective.

If you happen to see this comment, I have a question for you. What was apparently your final comment on this thread contained your unequivocal assertion that "…an Episcopal diocese cannot, without the consent of the General Convention, affiliate itself with, i.e., become a member diocese of, any body other than the Episcopal Church."

My question is very simple. To what document, or documents do you refer in adducing this principle? If the Constitution and Canons of the Episcopal Church, any subdivision thereof or Holy Scripture I would appreciate whatever specific citations you might be willing to provide.

Pewster, the structure of ECUSA is that of a voluntary association whose members may join with the permission of the group, but who may decide to withdraw at any time. The latter point makes ECUSA a confederacy, not a Union. Whether to use Davis or O'Toole, I leave up to you. I woould note only that in O'Toole's book, the confederacy was all-pervasive, and that while ECUSA may aspire to that level of interference, it has not yet reached it.

You asked, "To what document, or documents do you refer in adducing this principle?" (My contention that an Episcopal diocese cannot leave the Episcopal Church without General Convention's consent.)

On this issue Mr. Haley and I disagree. He sees the Episcopal Church as a confederacy, whil I see it as a union. In support of my position, I will cite only one phrase in Article I.4 of the Church's Constitution: The Church in each Diocese which has been admitted to union with the General Convention...." The article has to do with representation in the General Convention, but I think that the use of "in union with" is telling.

Although analogies are never perfect, marriage provides a useful analogy. It is a "voluntary association," to use Mr. Haley's description of the Episcopal Church. One of the parties may decide that he or she no longer wants to be married, but that pewrson cannot dissolve the marriage unilaterally. Given that there is no court within the Anglican Communoin that can end the relationship between a diocese and the Episcopal Church, the only way that could happen, in my view, would be with the common consent of both the parties that entered into the union, i.e., the diocesan convention and the General Convention.

Were the General Convention to consent to a request from a diocese to dissolve the union, I would still see that there would be areas for negotiation. Much of the property of a diocese and its congregations came from the offerings that people made to the Episcopal Church in its diocesan or parochial incarnations. I think that an argument can be made that surrendering that property to a diocese or parish that is not part of the Episcopal Church would be illegal.

I agree with you that the better course of action by the Presiding Bishop would have been to let the House of Bishops determine if Bp Iker had abandoned the Communion of the Church, and I wish that is what she had done. However, I think that his refusal to recognize the PB's authority to inhibit him raised real questions about whether or not he would have recognized the authority of the House of Bishops. He appears, as I have stated before, to want to have it both ways, i.e., to be a bishop of the Church in the Southern Cone (I avoid using the word province) as well as the Bishop of the Episcopal Diocese of Fort Worth. I think that people outside the Episcopal Church can only shake their heads in puzzlemant about his position.

Actually, Father Weir, my preferred choice of conduct for the PB would have been for her not to use the Abandonment Canon at all, which is simply a way for her to avoid having a trial. If the Church genuinely believes that a Bishop violates the "discipline" of this Church by transferring to another Church in the Anglican Communion, then let it have a properly convoked Court for the Trial of a Bishop say so.

Meanwhile, however, I would want that same Court to answer these two questions:

1) If going to another Church in the Anglican Communion constitutes "abandonment of the Communion of this Church", then why does the Canon define "abandonment" as the "formal admission into any religious body not in communion with the same"?

2) If going to another Church in the Anglican Communion constitutes "abandonment of the Communion of this Church", why does House of Bishops Rule XXIV provide that "any Bishop of this Church who removed from the jurisdiction of this Church to the jurisdiction of a Church in the Anglican Communion may be continued in relationship to this Houseas an honorary member"?

Until the Church proceeds in accordance with its Canons (or amends them), there is no getting around the fact that however much he may not wish to be, the Rt. Rev. Jack Leo Iker is still the Bishop of the Episcopal Diocese of Fort Worth. The proceedings to depose him were invalid, and I doubt that legally valid charges of "abandonment" could be laid against him because of the provisions I just quoted in the two questions above.

I fail to see, but for the demand which ECUSA is making for all the diocesan assets and property, why two Christian leaders could not simply sit down and work this out on Christian principles. (The Dennis Canon does not even apply to the property of a Diocese, so it need not stand in the way.) I am sure that the regular clergy and their congregations would much prefer to get on with their ordinary business than be drafted into supporting a lawsuit that will drag on for years and years, with no guarantees that the result would be better than that achieved through any settlement reached now.

You failed to quote the first definition of abandoning,i.e, "by an open renunciation of the Doctrine, Discipline, or Worship of this Church....."

It was the judgment of the Presiding Bishop, with which I agree, that Bp Iker had renounced the discipline of this Church openly in his decision to be received as bishop by the Primate of the Southern Cone. You can disagree with that judgment, but I think you should recognize that it was on the basis of that first definition, and not the ones that you quoted, that the judgment was made.

Father Weir, I realize that I cannot expect you to be familiar with the contents of every previous post on this site. Please do not take this reference as a brush-off, therefore, but I replied to your latest point at length in this post; you might want to read this one and this one as well.

Thank you for taking the time and trouble to explain the basis for your assertion. Unfortunately, based upon my trifling education in matters legal, it seems to me frequently the case in law that what is not expressly proscribed is therefore permitted.

Nevertheless, even if that is an overstatement of the reality, the use of the word "union" is in this instance, to the best of my knowledge, not a legal term of art. And in the matter of the freedom of one party unilaterally to depart from that union, I believe it a very considerable "stretch" to get from the use of the word "union" to an enforceable principle that if unilateral disaffiliation is not expressly permitted, it is forbidden. And, in the final analysis, it is a matter of law (constitutions and canons) with which we are dealing rather than a matter of doctrine.

I see your point about my foucusing on "the discipline of this Church" in isolation from doctrine and worship. I might suggest that renouncing any one of them is sufficient grounds for deposition. I agree, therefore, with the judgment of the House of Bishops in the cases that you cited in your earlier post, that acting to take a diocese out of the Episcopal Church is grounds for deposition. There is something very strange about the notion that the House of Bishops has no right to conclude that a bishop who has left the Episcopal Church is no longer a bishop of the Episcopal Church. Holy Orders are not personal property but a gift to the Church and cannot be properly exercised apart from the Church.

I would argue that your are mistaken in your assertion that Bp Iker is actually a bishop in another Church in the Anglican Communion. That is, as far as I can tell, not yet the position that the Archbishop of Canterbury has taken, and until such time as he affirms Bp Iker's standing, I would say that Bp Iker is not entitled to status as an honorary member of this Church's House of Bishops.

Clearly things are still up in the air and I do not envy Arbp Williams at all.

I apologise for my last post in this discussion. I entirely misread Mr. Haley's earlier post and my comments were way off the mark.

I think my disagreement with Mr. Haley - and perhaps with Mr.Toepfer as well - centers on the question of whether diocese have the right to secede from the Episcopal Church. Questions of canonical discipline of bishops who seek to take their dioceses into other jurisdictions are secondary and any arguments that we might have about such matters are likley to be fruitless because we disagree about whether sucah an action is a violation of the canons or not.

Because I view TEC as a union, and not a confederacy, I don't see the necessity of an explicit canonical prohibition of diocese seceding. Would things be clearer if there were such a prohibition? Certainly, but I think in the Constitution there is the explicit idenification of the Church as a union and the assumption of that throughout the Canons. That is certainly how the House of Bishops understands the nature of TEC and I expect that that will be the understanding that is upheld by the civil courts, as it seem to heven been by the Archbishop of Canterbury.

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